Blog : Newsletter April 2014

Personal Injury Attorneys Help Family Get Through Catastrophic Injuries and Loss

Personal Injury Attorneys Help Family Get Through Catastrophic Injuries and Loss

This was a complex catastrophic injury case, where we represented two young girls, ages 8 and 10 (Minor 1 and 2).  Minor 1 and 2 were severely injured when their grandmother lost control of her car and inexplicably drove into the opposite side of the lane on Interstate-88 near San Joaquin, and into the path of an oncoming vehicle at approximately 65-70 miles per hour.  The force of the impact was devastating, the teenage driver of the oncoming vehicle did not survive the impact, and her passenger received multiple fractures.

Minor 1 was air-lifted by helicopter from the scene of the accident to UC Davis Medical Center.  She suffered multiple life threatening injuries, including:  hip fractures, damage to her pancreas, liver and spleen, rib fractures, and a spinal compression fracture, requiring multiple surgeries.  Due to the severe injuries to her internal organs, she will require preventative antibiotic treatment until the age of 18.  Overall, she amassed over $650,000 worth of medical bills.  Minor 2 suffered multiple life threating injuries, including: liver laceration, pancreatic contusion, rib fractures, and a left humerus fracture, requiring multiple surgeries.  She amassed over $580,000 worth of medical bills.  Mr. Minami and Ms. Yang negotiated lien reductions with Kaiser for their total medical bills from $1,230,000 to $60,000, allowing the minors a far greater settlement than they would have received.

Both of the parties in the other vehicle, the passenger and survivors of the deceased, as well as both of our clients, filed claims against the grandmother/driver.  With a policy limit of $500,000 for multiple plaintiffs, the amount was insufficient to compensate the plaintiffs for all damages. Negotiations were extremely complex as there was a limited policy limit for 1 death and 3 severely injured claimants.  Defendants hired an asset protection attorney to evaluate and shield their exempt/non-exempt assets.

Dale Minami and Eunice Yang represented the Plaintiffs and argued that while it is unfortunate that one claimant from the other vehicle had perished, the other passenger would make a full-recovery, while our clients, two very young girls suffered permanent, life-altering injuries, including the possibility that neither may be able to have children once they reach adulthood.

Mr. Minami and Ms. Yang also argued that the passenger of the other vehicle had significantly lower medical bills, since she was a Medi-Cal patient, while our clients had significantly higher medical bills with Kaiser.  Further, because Minor 1 and 2 were insured under their father who was a postal worker, their medical insurance plan was governed under the Federal Employees’ Health Benefits Act, which preempts favorable state laws that requires Kaiser to reduce its medical liens.  Accordingly, Minami and Yang argued that Minor 1 and 2’s economic damages were significantly higher than the passenger in the other vehicle.

After months of negotiations, the parties ultimately reached a resolution which divided the insurance policy limits of $500,000 amongst the claimants, as well as a contribution of $250,000 of the grandmother’s own personal money to the settlement to divide amongst the claimants.  Ultimately, Minami and Yang were able to secure a $360,000 settlement for our clients, who received $180,000 each.  Our clients’ settlement money was placed in a blocked bank account until they reach the age of 18.

Remarks by Don Tamaki Introducing California State Bar Leaders at AABA Dinner

AABADinner_DTamaki_JoeDunn_LuisGonazales

Partner Don Tamaki delivered the following remarks for his introduction of State Bar of California CEO Joe Dunn, President of the State Bar Luis Rodriguez, on March 14, 2014, at the annual dinner of the Asian American Bar Association of the Greater Bay Area. AABA presented the State Bar with an award for its role in enabling Sergio Garcia, an undocumented immigrant, be admitted as a lawyer. The State Bar retained Don and Minami Tamaki LLP as counsel in the matter.

Tonight, AABA recognizes the State Bar for its historic stand in recommending to the Court that Sergio Garcia, an undocumented immigrant, be admitted as a lawyer.  That set the stage for a case of first impression, unprecedented action by the Legislature–and ultimately–a ground-breaking Supreme Court decision on immigrant rights in California.

Before I introduce State Bar CEO, Joe Dunn, and the President of the Bar, Luis Rodriguez, to accept this recognition, let me frame the issue.

As Asian Americans, we know something about immigration.  Most of us in this room are only a generation or two removed from our immigrant ancestors.  In fact, many of you are immigrants yourselves.  The common denominator is that most of our families arrived here with nothing more than a belief in this country, and a desire to build a new life in America. We are the result.

Was our entry into the United States lawful? Not always. We’d like to think that we came here on the Mayflower, but we know that’s not true.  Many of us are descendants of “paper sons or daughters” who bought documentation identifying them—falsely–as children of American citizens, and who studied coaching books with detailed information on their “paper” families in order to pass grueling interrogations at Angel Island. My grandfather skipped Angel Island entirely—he was a stowaway, having paid a cook to hide him in the pantry of a steamer.  And when that ship arrived in Eureka, he slipped out of that pantry into the confusion of the dock, and made his way to San Francisco as an undocumented immigrant.

Fast forward to 1977.  Sergio Garcia was born in Mexico. When he was a baby, his father, a lawful permanent U.S. resident at the time, brought Sergio into the United States without papers.  Subsequently his father became a U.S. citizen and filed a petition for his son to adjust to lawful status.  That petition was approved in 1995.  Nevertheless, Mr. Garcia has been waiting, in an undocumented status, for the past 18 years for his visa to become available.  During this time, he attended high school, college, and law school, and passed the Bar Examination on his first attempt.  But for this backlog created by the immigration system, Mr. Garcia would have lawful, documented status today.  Worse, it may be many more years before his visa finally issues.

Despite the obvious controversy, the Committee of Bar Examiners and the Board of Trustees took a very principled stand, rooted in the rule of law, concluding that Mr. Garcia’s undocumented status should not disqualify him from becoming an attorney.  In making its recommendation, the legal team in the State Bar’s Office of General Counsel, in particular, Rachel Grunberg, Larry Yee, and Rick Zanassi, deserve special recognition.  Under the now retired General Counsel, Starr Babcock, they did an enormous amount of work over a 2-year span to analyze the hugely complicated legal issues–not the least of which is a federal statute barring undocumented immigrants from receiving State benefits, including professional licenses, unless the State Legislature passes a law allowing it.

On January 2, 2014, in a case of first impression, the Court unanimously agreed with the State Bar and admitted Mr. Garcia.  This important decision was the culmination of the unfaltering resolve of Sergio Garcia,–but also the extraordinary efforts of the State Bar led by State Bar CEO Joe Dunn, and the support of the Legislature which passed in record time a law allowing the Court to admit qualified bar applicants who, notwithstanding their undocumented status, have met all of the requirements.

For the 11 million undocumented immigrants in the United States, including many young Americans who were brought here as children—who have known no other country, and who have excelled in grade schools, colleges, and even graduate schools including law schools—the Garcia case is highly significant and addresses–at least in California–one aspect of an otherwise very broken immigration system.

Folks–it is a huge event when an institution as big and as influential as the State Bar of California, together with Sergio Garcia, the Legislature, and a unanimous Supreme Court, take a giant step towards integrating the children of undocumented immigrants–popularly known as “DREAMers”–into the fabric of our society.  It gives hope to other aspiring DREAMers, that perhaps they too might one day be a lawyer–or for that matter, a doctor, or a teacher, or any other profession that requires a license.

Therefore, it is my great pleasure to ask that the CEO of the State Bar of California, Joe Dunn, and Luis Rodriguez, the President of the State Bar, accept AABA’s recognition.

Ladies and gentlemen, won’t you join me in welcoming Joe Dunn and Luis Rodriguez to the stage.

Read AABA’s article about the event

B. Mark Fong Settles Drowning Case at Port of Stockton

On February 7, 2009 Ray T., a stevedore at the Port of Stockton, was getting off work where he had been supervising the offloading of a cargo ship.  As Ray drove along the dock in his Honda Civic, a Port of Stockton police car exited a warehouse and struck Ray’s car at low speed.  A few seconds later, Ray’s car began to accelerate at a high rate of speed (up to 60-70 miles per hour) in a straight line away from the site of the crash.  The car travelled the length of a football field and launched off the end of the dock into the water, where it floated for about 8 minutes while Port personnel tried to figure out how to reach it.  Finally, the car sank with Ray inside.

A wrongful death suit was brought against the Port and its police department by Ray’s family, alleging 1) the Port police officer was negligent for driving into Ray, and 2) the Port created a dangerous condition of public property by failing to regulate vehicle traffic so as to prevent cars from crashing into each other, and by not having lifesaving equipment mandated by Federal OSHA (Occupational Safety and Health Administration.)

The Defendants claimed the accident was relatively minor and there was no reason for Ray to have driven off the dock.  Our theory was that Ray became disoriented from the crash and fell victim to “pedal misapplication,” which is where a driver mistakenly steps on the accelerator thinking it is the brake.  To complicate the case, Ray was found in cardiac arrest when he was pulled from the water; defendants argued this heart condition was what caused the accident and Ray to drive off the dock, not pedal misapplication.

To bolster our case we had the “black box” (vehicle data recorder) in Ray’s Honda examined to see if his airbag deployed in the crash with the police car, which could have contributed to Ray becoming disoriented.  This proved challenging because the data recorder had been submerged in salt water and became corroded, and the algorithms to decode the information were Honda’s proprietary trade secrets.  We hired a preeminent black box expert, Bill Rosenbluth, who was able to determine that the driver’s side airbag deployed in the crash, as we suspected.

We also showed the accident could not have been caused by Ray going into cardiac arrest, as there was significant water found in his lungs, which proved that he died due to drowning rather than cardiac arrest.

After three mediation sessions, we were able to settle this case for Ray’s widow and two adult children for $950,000, which was a combination of new money and benefits Ray’s widow received from workers compensation.

California Supreme Court Reviews Rights of Undocumented Workers

Legal protections for undocumented workers are currently in a state of flux in California and across the United States. Because California is home to many of the nation’s undocumented workers, developments in California’s employment laws impact millions of lives and influence the developing landscape of immigration and employment laws across the country.

On April 2, 2014, the California Supreme Court heard oral argument in Vicente Salas v. Sierra Chemical Co., a case that may determine what, if any, workplace protections in California apply to undocumented employees.

Background

Vicente Salas filed a discrimination claim against his former employer, Sierra Chemical Co. (“Sierra”), for violating the Fair Employment and Housing Act (FEHA) and terminating his employment in violation of public policy.  Mr. Salas alleged that Sierra failed to reasonably accommodate his disability and failed to engage in an interactive process regarding the necessary accommodations.  He also alleged that Sierra denied him employment to punish him for filing a claim for workers’ compensation benefits.

The trial court dismissed Mr. Salas’ claims on grounds that after he filed his lawsuit, the employer discovered that he was not authorized to work in the U.S and the Court of Appeal affirmed.  Mr. Salas then successfully petitioned the California Supreme Court for review.

Legal History

In 2002, the U.S. Supreme Court ruled in Hoffman Plastic Compounds, Inc. v. NLRB that the Immigration Reform and Control Act of 1986 precluded undocumented workers from receiving a remedy of back pay even if they were victims of unfair labor practices.

In response to Hoffman, California enacted SB 1818 to ensure that undocumented workers remained entitled to the same rights and remedies afforded to all workers under state law.  SB 1818 was codified in California Labor Code Section 1171.5, which provides that all protections, rights, and remedies available under state law (except reinstatement remedies prohibited by federal law) are available to all employees regardless of immigration status.

Supreme Court Argument

Mr. Salas argued to the Supreme Court that the lower court’s decision should be reversed and that his case should be allowed to proceed because SB 1818 provides full protection under state law regardless of immigration status.  Mr. Salas argued that allowing the lower court’s decision to stand would give employers a free pass to exploit undocumented workers.  Mr. Salas also drew the Court’s attention to longstanding legal precedent establishing that, due to their great public importance, civil rights cases must be allowed to proceed to trial regardless of an employer’s accusations of employee wrongdoing.

Conclusion

The California Supreme Court will issue its decision in the Salas case by July 2014.

Because California is home to many of the nation’s undocumented workers, developments in California’s employment laws impact millions of lives and influence the developing landscape of immigration and employment laws across the country.

Dale Minami Helps Couple Hold Waiter Accountable for Negligence

On August 3, 2012, Brad and Karen Y., a married couple and both 38, went to lunch at the Wayfare Tavern Restaurant in San Francisco, California.

While seated and enjoying their food, a waiter, carrying a large urn, containing approximately 64 ounces of boiling hot coffee, spilled its contents down the right side of Brad’s face and torso causing excruciating first and second degree burns to 20% of his face and injuries including  severe blistering burns to his right cheek, neck and ear, ringing of the ears, eschar of the right cheek and post-traumatic stress disorder.

Karen was a witness to the horrific ordeal and suffered post-traumatic stress disorder.

Brad treated with plastic surgeons for six months and still continues to suffer from sensitivity to the skin on the right side of his face; he was also treated for post-traumatic stress anxiety disorders, migraines and tinnitus. Karen was treated for post-traumatic stress disorder with a therapist at Kaiser for the horrible accident to her husband which she witnessed.

Dale Minami, counsel for the couple, that Brad, who had just lost his job 2 days prior to the accident, was unable to interview for a new job for 3 months  with a total loss of earnings capacity of approximately $18,000.  Karen was advised to stay from work for approximately three days, due to her injuries and suffered wage loss in the amount of $1,500.00.

Dale argued that the restaurant’s waiter was 100% negligent and liable for the incident.  Ultimately settled the case for $100,000 globally for the couple.

Don Tamaki Featured in Nihonmachi Little Friends Video

Partner Don Tamaki, head of Minami Tamaki LLP’s Corporate and Nonprofit Counseling practice, was featured in a recent video produced by Nihonmachi Little Friends, a private, nonprofit childcare center in San Francisco Japantown. In the video, Don recounts the fight over the historic building, home to Nihonmachi Little Friends, which was at risk in the late 1990s of being sold by the YWCA, even though it was not their building to sell. The building was founded by Nisei women who placed the building in trust with the YMCA in the 1940s because the U.S. government incarcerated Japanese Americans during World War II. When the YWCA tried to sell the building, Don and a team of attorneys helped stop the sale and settled with the YWCA, resulting in the preservation of the historic building.

Don’s section in the video begins at 04:01.

Immigration Practice Group Manages Huge Push for New H-1B Visa Petitions on Behalf of Clients

The Immigration Practice Group is recovering from a crushing push made on behalf of its corporate clients for the April 1, 2014, opening by USCIS of H-1B visa petitions for professionals seeking to work in the U.S. in FY 2015, including software engineers, marketing specialists, and burgeoning entrepreneurs.

The law currently allows only 65,000 visas for new hires, with 20,000 additional visas for foreign national professionals who graduate with a Master’s degree or higher from a U.S. university.

At a time when the economy is on track towards recovery, it is no wonder that this year USCIS reported a record 172,500 petitions filed during the first week, more than double the number of visas available and the highest number if H-1B Petitions filed — ever. As a result, USCIS has turned once again to its computer generated lottery, meaning Petitioners and Beneficiaries, no matter the merits of their case, have been relegated to a luck-of-the-draw system with a 50% chance of selection at best.

The talent a U.S. company seeks or the promise of job creation from foreign entrepreneurs is essentially put on hold while they wait, or ultimately rejected. It makes no sense. And while segments in both Houses of Congress refuse, at all cost, to lift an antiquated immigration system, the possibility for meaningful, constructive change remains an ongoing challenge.

Who Profits from Your 401(k) Plan? It Might Not Be You.

 

You have worked for decades, relying on contributions to a 401(k) plan for retirement.  But like most of us, you are not aware that you may be losing money through illegal activities of your employer and/or plan administrator such as overcharging fees and inappropriate investment choices.  As the saying goes “we are too busy working to make money.”  Now do something about it!  Evaluate your 401(k) plan.  If the costs are over 1% or you are in high risk investments or over invested in one sector or company (especially your employer), chances are you have lost a significant portion of your money over time.  For example, if costs are illegally excessive in the amount of $1,000 per year, you lose the compounded investment potential of that money, so over 20 years the loss may be in the tens of thousands.

Despite market ups and downs, however, Wall Street operators always seem to take their cut in good times and bad. This is no accident. Most 401(k) plan assets are invested in mutual funds. These funds charge investors an “expense ratio” (and sometimes a “sales load” or simply a “kickback”), which is not clearly disclosed and often are paid to your employer or administrator, not to you.  Such funds “incur a host of “invisible” costs that are less transparent to investors.” See “Shedding Light on ‘Invisible’ Costs: Trading Costs and Mutual Fund Performance,” Financial Analysts Journal, (Edelen, Evans, Kadlek; Jan.-Feb. 2013).

The United States Department of Labor’s website warns employees and retirees that “fees and expenses paid by your plan may substantially reduce the growth in your account which will reduce your retirement income” and “that higher investment management fees do not necessarily mean better performance.” See “A Look At 401(k) Plan Fees.” In other words, most employees and retirees with 401(k) accounts do not know what happened to their hard-earned money and instead “trust” in their employer and plan administrator to do the “right thing” but whose business plan is to make more money off your money than you do!

We can help. Employers and other plan fiduciaries have a legal duty to act in YOUR best interest, not theirs. The law may allow you or a class of people to recover monetary damages and/or a court order reversing unlawful, undisclosed, and/or excessive 401(k) plan fees and costs from your current or former employer as well as certain 401(k) plan custodians, but only if you act quickly.

If you have questions about “mystery fees” or “inappropriate investments” in your 401(k), please call (415) 788-9000 to schedule a complementary consultation with Minami Tamaki LLP Consumer and Employment Rights Group Partner Brad Yamauchi or get in touch with us online.

This post was written by George Rafal, a paralegal in the CERG practice.

Minette Kwok Profiled in SF Women Leaders in the Law Magazine

kwokPartner Minette Kwok of our Immigration Practice Group was recently recognized in a special magazine, San Francisco’s Women Leaders in the Law, published by ALM, Martindale-Hubbell and The San Francisco Chronicle. The magazine featured profiles of the area’s top female attorneys in recognition of Women’s History Month. In addition, profiles will be visible to thousands of monthly visitors throughout the year on SFGate.com and Law.com. Download the special section here.